Federalism: splitting the atom
of sovereignty
• Constitutionally: dual citizenship
• Practically: multiple layers (e.g.,
criminal justice example)
• Politically: the most divisive or
controversial part of American
Three Types or Systems
• Unitary: ultimate authority resides in the national
government. This the most common arrangement
(text uses France).
• Confederation: is often referred as a league and it is
where there is a national government but the real
sovereignty resides in the individual states (Articles of
Confederation and European Union--discuss
contemporary situation, Germany & Greece debates).
• Federalism: authority is divided between a national
government and individual states--the U.S. was the
first, but Germany, Mexico, Canada, etc.
Why Federalism? Rationales
• Political solution: probably the “best”
explanation for our adoption of federalism is
that it was a (maybe the) compromise in
Philadelphia.
• Practical explanation: We had tried the other
two.
• Contextual explanation: for more than a
decade the states had operated as sovereign
entities. There was no way the states would
cede total control.
Constitutional Aspects of
Federalism
• Source of government’s power: recall the
structure of the U.S. Constitution. It grants
power and lays out the structure.
• All federal authority has to be constitutionally
grounded.
• Always remember the very real pressures
that prompted the constitution--weak,
ineffective government almost lost the
revolution.
Types of Powers
• Enumerated Powers: these are powers that explicitly laid out in the Constitution. The best
example of enumerated powers come from Article I, Section 8 but it is important to stress that
the other branches also have enumerated powers.
• http://www.usconstitution.net/const.html
• Implied Powers: these are powers that are not explicitly laid out but are implied in the specific
Constitutional language. The usual example cited is the “Necessary and proper clause.” This
has been a major tool in the expansion of federal power, so much so that many refer to it as
the “elastic clause.”
• Inherent Powers: these are powers that naturally flow from the separate branches (discuss
president’s power to receive foreign ambassadors).
• Concurrent Powers: there are areas where the national and state governments share
authority. The best example is the power to tax but there are a wide range of areas where
both national and state power operates (states and wiretapping).
• Prohibited Powers: the Constitution has specific limits or denials of power. Some language
curtails the national government (e.g., no taxing exports, no ex post facto, etc.) while other
limitations apply to the states (can’t enter into treaties, Article IV, full faith and credit--interstate
relations, etc.).
• Supremacy Clause: Article VI, clause 2.
• Reserved Powers: the 10th Amendment states that those powers not delegated (go to the
Amendment).
Power hinges on interpretation
• The scope and reach of the national government
hinges on how specific provisions within the
Constitution are interpreted.
• Each branch and all levels of government interpret
the Constitution (by overt actions such as laws or
dramatic confrontations--think southern governors
standing in school house doors.
• Judicial Review: the importance of Marbury vs.
Madison cannot be overstated. It has grown into a
political reality that the Court has the final say (this
was no smooth process and there are critics still).
Phases of Federalism or the
story of a sliding scale
• Early Nationalist Period: 1789-1835
• McCulloch vs. Maryland (1819): debate rooted in
Washington first administration. Discuss
Hamilton’s financial plan and Jefferson’s
complaints.
• Marshall’s ruling: Necessary and Proper and
Supremacy Clause.
• Gibbons vs. Ogden (1824): debate centered on
the scope of the interstate commerce clause.
Should it be read narrowly or expansively?
Specifics of the case (it involved navigation).
States-Rights
• Virginia and Kentucky Resolutions (1799). John Adams and the Alien
and Sedition Acts. Madison pens the VA and Jefferson the KN
resolutions (discuss the scope). Discuss early roots (Hartford
Convention and opposition to War of 1812, etc.)
• Doctrine of Nullification: associated with extreme states’ rights positions
(the nation a compact among states). It is often associated with John
C. Calhoun and the battle over the “abominable tariff” of 1828.
Increasingly, states-rights associated with slavery.
• Scott vs. Sandford (1857) who would “regulate” slavery in the territories
(discuss how it had been through congressional compromises).
Taney’s ruling: while blacks could be state citizens, they did not have
U.S. citizenship and therefore could not sue in federal court. Secondly,
and more startlingly, the Court ruled that the Missouri Compromise was
unconstitutional (2nd usage of judicial review to strike down
congressional legislation). Aftermath? The Civil War.
The Civil War and federalism
• Southern extremist push states-rights to the brink,
claiming that the individual states have to power to
dissolve the union (bring up the ratification issue again).
• The War itself: wars and the size of government. U.S.
didn’t have much of a military but before the end, the
Union army was massive and extremely well outfitted
(stunned the world). Income tax introduced for the first
time, curtailed civil liberties (unconstitutional measures,
etc.). Transformed the nation’s economy, ushering in an
industrial revolution on a massive scale.
• Civil War Amendments: 13th, 14th & 15th all directed at
state governments.
Dual federalism or laissez-
faire capitalism: 1876-1932
• Definition: dual federalism is a theory of sharply defined areas of
governmental authority, where the national government handles
specific tasks (commerce, foreign affairs, some infrastructure) and
states utilize their “police” powers to regulate the health, safety,
and welfare. Sometimes called layer cake federalism.
• Reality: emerging industrial economy put dramatic pressures on
government. Many elites, especially some serving on the
Supreme Court, adhered to a economic philosophy known as
laissez-faire (there was also an element of social Darwinism or
survival of the fittest).
• Court cases: the reality was quite complicated and some areas of
the economy was regulated but these two cases demonstrate the
limits of dual federalism.
– 1) Lochner vs. New York (1905)
– 2) Hammer vs. Dagenhart (1918)
Great Depression and
federalism
• Stock market crash of 1929 put
enormous strain on the economy.
Absence of effective regulations, the
weaknesses of governmental
institutions (the Federal Reserve, etc.)
• Hoover’s reputation (larger philosophy
against economic regulations and
governmental responsibility.
FDR and the New Deal
• 1932 campaign and cooperative federalism.
• Early resistance from the Supreme Court
(Schechter Poultry vs. U.S. (1935) and the
NIRA).
• FDR’s “court-packing plan,” the 1936 election
and new regulations.
• Owen Robert’s “switch-in-time-saves nine.”
• Cooperative federalism ensues.
Cooperative Federalism: 1933
to present
• Significance of the Commerce Clause:
interstate commerce (Wickard vs.
Filburn (1942).
• 1964 Civil Rights Act and Heart of
Atlanta Motel vs. U.S. (1964) and
Katzenbach vs. McClung.
• Picket fence federalism: theory and
practical rationale
Methods of Implementation:
carrots
• Follow the $, whose paying and whose
implementing?
• Categorical grants: rationale, problems with
implementation, and growing hostility.
• Trend, tremendous increase in the transfer of
federal dollars to state and local governments
(see Figure 3-2 & 3-3). Discuss “coercive
federalism,” via South Dakota vs. Dole (1987)
• Block Grants: rationale and appeal (discuss Al
Gore’s initiatives “reinventing government”).
Sticks: Mandates and
Preemption
• Mandates: as Congress became involved in a host of
new sorts of activities, ranging from EPA and clean
water to the promotion of math and science in
elementary schools, it became common to put
language in bills that ordered state and local
governments to cooperate. (Discuss 1994 Contract
with America and “unfunded mandates”).
• Waivers: in an effort to “ease” states and localities into
new areas the Congress often allows “waivers” or
extensions for compliance.
• Preemption: federal authority “sweeps the field--think
nuclear waste materials.
Politics of Federalism
• Storm Center: whatever the conflict of the day, it
eventually becomes a battle over federalism (in
the 1930s it was economic regulation; in the
1960s it was race relations; the 1970s-80s saw
pitched battles in the social issues; 1990s, etc.
• Interdependency & technology: we could be
more decentralized in the 1920s but since then
there have been revolutionary transformations in
how we live, produce and interact with the world.
(communication; transportation; economics;
geopolitics).
Federalism and Finances
• Compare and contrast governmental
revenues.
• Feds have “dynamic” revenues sources and
they have “budgetary breathing space.”
• Income taxes vs. property or sales taxes.
• Feds have more $ but states and local
governments have more employees.
• Fiscal Federalism
New Federalism
• Movement that dates back to 1969 and Richard Nixon’s
“revenue sharing” plans, which got to the heart of the matter.
• Ronald Reagan’s efforts at new federalism (mixed record,
killed revenue sharing but did shrink the amount of federal
dollars that went to the states (but military expenditures and
tax cuts. . .).
• Democrat efforts: Jimmy Carter’s efforts (from zero budgeting
to streamlining government, etc.) Bill Clinton’s famous State
of the Union “the era of big government is over.”
• George W. Bush involved a lot of contradictory rhetoric--”No
Child Left Behind” was a tremendous involvement into state
and local authority.
• Circumspection is advised--follow the numbers.
New Federalism in the Courts
• US vs. Lopez (1995); US vs. Morrison (2000);
and Printz vs. US (1997).
• Be careful not to over simplify. The courts
often send “mixed” signals regarding
federalism. Your text cites Massachusetts vs.
EPA (2007) case where the Bush
administration interpreted the congressional
language involving EPA narrowly, not allowing
the regulation, for example, of “green house
gases.” The Court disagreed (more statutory
than constitutional.
Assessments
• Positives:
--any time you get sovereignty and control
closer to the people is a positive thing (at
least in terms of how people think about
government).
--states serve as laboratories (dynamic policy
outcomes).
--states serve as a check on national power.
If the feds go too far, the states can try and
limit the damage.
continued
• Negatives:
--lacks efficiency
--often very confusing as to whose in charge
--allows, even promotes, different (unequal)
treatment. Our rights and privileges as well
as how government is structured is highly
dependent on where one lives.
